Legal pot: Roadside drug tests raise civil liberties red flags

Federal Justice Minister Jody Wilson-Raybould announced the approval of roadside drug screening machines yesterday, after a 30 day public consultation period. This announcement comes following the passage of Bill C-46 earlier this year, which amends the Criminal Code, addressing drug-impaired driving and roadside testing.

The approved device, the Dräger DrugTest® 5000, tests for the presence of several drug types in a single bodily fluids test. A promotional video for the devices shows the test being administered with a swab of the inside of the mouth, collecting saliva to be analyzed on site by a testing machine. The device is capable of testing for cocaine, opiates, benzodiazepines, cannabis, amphetamine and methamphetamine.

Expanded police powers

Bill C-46, which received Royal Assent in June was introduced alongside the Liberal government’s cannabis legalization bill (C-45) and gives peace officers the power to compel individuals to submit to a bodily fluids test for drug intoxication with reasonable grounds to suspect that the individual is impaired. The new machines will be made available to police across the country and are to be used in addition to or as an alternative to standard field sobriety tests currently in use by law enforcement. Police powers to compel individuals to take the test apply to a period within three hours of operating a motor vehicle.

Civil liberties concerns around roadside drug testing

Canadian Civil Liberties Association Director of Public Safety Programs, Rob De Luca says there are definitely civil liberty concerns with the implementation of provisions of bill C-46. For starters, he questions whether the test does what it is touted as being able to do. “What the test ultimately tests isn’t impairment.” He foresees potentially significant ramifications of the rollout of these screening devices. “The problem is that THC is not a marker of impairment…I think the oral fluid screening devices… are going to catch people who aren’t impaired. I think that’s an improper use of the criminal law and it’s going to have devastating consequences.”

Furthermore, De Luca cited concerns around roadside detentions. “I’ve heard complaints of these tests taking upward of ten minutes, which raises Charter concerns of its own. Because you don’t have a right to a lawyer prior to taking the test, etc.” Not to mention issues encountered during the trial period with the operation of the devices in cold weather. “The solution of bringing someone under investigation into a police car raises further civil liberties concerns…and makes the detention that much more invasive.”

Long-time cannabis and civil liberties advocate Jodie Emery questions whether there is even a link between cannabis use and impairment when it comes to operating a motor vehicle. “There’s no statistical or measurable connection between cannabis use and driving impairment… Impairment is associated with performance and police already have tests at their disposal that measure performance.”

Policy change through advocacy or in the courts?

Neither De Luca nor Emery are convinced that advocacy and public pressure is likely to sway government policy on this issue. De Luca said, “The current government has been very steadfast in pushing these per se limits so it’s hard to see them tuning course. There have been a number of members of the bar who raised constitutional concerns and that hasn’t swayed [the Liberal government] yet.”

“The government has never liberated people or cannabis in any way.”

– Cannabis and civil liberties advocate Jodie Emery

Emery says, “The only way any marijuana laws have changed in Canada have come from court challenges. The government has never liberated people or cannabis in any way.” She suggests that, “peaceful civil disobedience is the only way to challenge and change these laws.”

Cannabis legalization takes effect nationwide on October 17 and police across the country are being trained to deal with the new reality of Canada’s drug and impaired driving laws. Still, the Canadian Association of Chiefs of Police told CBC last month that they probably won’t reach their target of 2000 officers trained to spot marijuana impaired drivers by that date.